What is a motion to revoke probation in Texas?

A motion to revoke probation in Texas is how prosecutors send you to jail if you break the rules of probation. It happens after a person plead guilty or no contest to a criminal charge. In many cases, the judge puts the person on probation instead of sending them to jail.

However, probation requires the person to follow the rules. As an example, these rules include reporting to a probation officer, paying fines and court costs, and giving regular drug tests. If the person does not follow these rules or fails a drug test, then the State files a motion to revoke probation. Lawyers call these motions “MTRs.”

Can you fight a motion to revoke probation in Texas?

Yes. The MTR is an important document. It tells the person exactly what he did wrong while he was on probation. However, if a person does not agree with the violations in the MTR, then he can fight them at an MTR hearing. Here is how to do that.

During the MTR hearing, the judge will ask the person if the violations in the MTR are “True” or “Not True.” If the person wants to fight the MTR, then he should plead “Not True.” This is how you tell the judge you want to fight the MTR.

On the other hand, if the violations are correct, then the person should plead “True” to the violations. This is how you tell the judge you do not want to fight the MTR.

The key is to tell the judge and the prosecutor what you want to do.

What happens at a contested Motion to Revoke hearing in Texas?

If the person says the violations are “Not True,” then the judge will set the case for a contested hearing. This requires the State to put on proof that the person broke the rules of probation. At the same time, the person can challenge the proof and make his own case as to why the allegations are not true.

At the end of the hearing, the judge must decide if the allegations are true or not true. If they are not true, then the judge will deny the MTR and continue the person on probation. But if the violations are true, then the judge has several options. We list them below.

What will a judge do if I break the rules of probation in Texas?

If the judge decides that the violations in the MTR are true, then he has four options. He can:

  1. Continue the probation. In other words, nothing changes. And the person stays on probation;
  2. Extend the probation. The judge adds more time to the original probation term;
  3. Modify the probation. The judge can add or change the terms of the probation; or
  4. Revoke the probation. The judge ends the probation and sends the person to jail.

The final decision will depend on the judge. And this is where it becomes hard to predict what a judge will do in any case. Stated differently, some judges are more lenient than others.

In addition, the judge will consider several factors before he makes a decision. These include the person’s criminal history, what the person did while on probation, and the type of case he is on probation for.

For these reasons, you should talk with an attorney that practices regularly before the judge your case is set in. Your lawyer can give you a general idea of what to expect.

What are the 3 types of probation in Texas.

There are three types of probation in Texas. They are:

  1. Deferred Adjudication Probation: The judge does not find the person guilty of the crime. Instead, the judge places the person on probation. If the person completes the probation term, then the judge will dismiss the case;
  2. “Straight” Probation: The judge finds the person guilty of the crime, but does not send him to jail. Rather, the judge places the person on probation. If the person completes the probation, then the judge will not send him to jail but the person will still get a conviction on his record; and
  3. “Shock” Probation: The judge sends the person to jail to start serving his sentence. However, Tex. Code Crim. Proc. Art. 42A.201 & 42A.202 allow the defendant to ask the judge to stop the jail term and put him on regular probation. These cases are called shock probation.

Further, the type of probation the person is on matters in the following manner.

If a person is on deferred probation, then the judge can send him to jail for up to the maximum jail term allowed by law. As an example, if a person is on two (2) years deferred probation for a second degree felony, then the judge can send him to jail for up to 20 years if the person breaks probation.

Conversely, if a person is on straight probation for 2 years on a second-degree felony with an underlying sentence of 5 years, then the most jail time the judge can give the person is 5 years. This is because the judge set the jail time at 5 years up front. But instead of sending him to jail, the judge put him on probation.

What are the most common probation violations in Texas?

The most common probation violations in Texas are:

  1. testing dirty for drugs;
  2. failing to report to a probation officer;
  3. getting arrested for a new crime;
  4. failing to complete community service hours; and
  5. not paying fines, fees, and court costs.

Can I get a bond on a Motion to Revoke Probation in Texas?

Yes. But it will depend on the judge. Tex. Code of Crim. Proc. art. 42A.751(c) states that “only the judge who ordered the arrest for the alleged violation may authorize the defendant’s release on bond.”

As a result, if the judge issues an arrest warrant for the defendant and remands him without bond (R.W.O.B.), then the person will not be able to bond out of jail. When this happens, the person’s lawyer must ask the judge to set a bond in the case.

However, if the judge does not want to set the bond, or if the judge sets a high bond amount, then the person must wait in jail until the MTR hearing.

What happens if I get a first-time probation violation in Texas?

The type of mistake or probation violation is what matters most. In other words, how bad did you foul up?

For instance, if the person is on probation for selling drugs and gets arrested again for selling drugs, then this will be a tough case to work out.

On the other hand, if the person is on probation for simple possession, and gets an MTR for not completing community service hours, then it is more likely the person will avoid serving jail time.

Equally important, the judge and the State will also look to see what the person did while he was on probation. The more positive things the person has done on probation, the more likely it is the judge will keep him on probation.

Positive things on probation include completing drug classes, paying fines and court costs, and reporting to your probation officer.

In short, with probation violations, you are at the mercy of the judge. And the more positive things you did while you were on probation can help you get leniency.

What is your advice for someone on probation in Texas?

Get off probation as quickly as possible.

This means you must take control of your case by completing all the classes and community service hours in your case. And you must also pay the fines, court costs, and fees.

If you do this, then your lawyer can file a motion with the judge asking for early termination of community supervision. Notably, if you are on deferred adjudication probation, you can file this motion at anytime. Critically, you should file this request as soon as you complete the probation terms.

Likewise, if you are on regular or shock probation, then you can ask for early termination. But there is a waiting period. Specifically, you can file the motion for early termination after you complete 1/3 of the term or 2 years–whichever term is less.

The reason for this advice is straight forward. The longer you are on probation, then the more time there is for something to go wrong.

Maybe your car breaks down and you cannot report to probation. Or you lose your job and cannot pay for the classes, fines, or court costs. Worse yet, you have a moment of weakness and use drugs.

In each of these cases, you are opening the door for the State to file an MTR. However, by getting off probation as quickly as possible, then you shorten the window for bad things to happen.

For these reasons, I advise all clients to complete the probation quickly and to ask the judge for early termination.

Attorney Genaro R. Cortez.

Questions about your MTR in San Antonio? Call 210-733-7575 for a free case consult.